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Bracke appeals molestation convictions

by Tom Chillemi

Convicted child molester Arthur R. Bracke of Middlesex has appealed his six felony convictions to the Virginia Court of Appeals.

In his petition of appeal, Bracke alleges three errors were made in his case by Middlesex Circuit Court Judge William Shaw III.

In November 2008, Judge Shaw accepted the jury’s recommendation on the six felony convictions and sentenced Bracke to 34 years in prison and a $10,000 fine. Judge Shaw retired April 30.

Charles E. Haden of Hampton is Bracke’s court-appointed attorney for the appeal. He is petitioning the Court of Appeals to “set aside” Bracke’s convictions.

Bracke, 62, committed the six sexual felonies after he retired from the Middlesex Department of Social Services where he was a child abuse investigator for 21 years. He retired July 31, 2007.

“Hearsay” testimony

The first issue Haden raises in his appeal regards “hearsay” testimony. During Bracke’s trial in August 2008, the victim’s mother testified as to what her son told her about Bracke’s touching him. Bracke’s attorney argues in the appeal that the mother’s “hearsay” testimony was “prejudicial” and the trial court should have declared a mistrial rather than instructing the jury to disregard the testimony.

In his opposition brief, Middlesex Commonwealth’s Attorney Mike Hurd cites the Virginia Code whereby testimony concerning “a sexual offense is admissible for the purpose of corroborating [confirming] the testimony of the complaining witness.”

Insufficient evidence

The second point Haden raises is that “the evidence was insufficient to prove beyond a reasonable doubt” that Bracke committed six sexual felonies. Bracke’s attorney argues there was “no eyewitness, medical, or forensic evidence to corroborate the allegations of a confused and troubled young boy with bipolar disorder.”

Hurd’s response states, “Most sex offenses occur without witnesses and the appellate courts have held that a conviction of sexual offenses may be sustained solely upon the uncorroborated testimony of the victim.”

Hurd also notes that Bracke’s trial attorney, Joey Caprio, did not “make a motion to strike the evidence” during the trial.

Motion to suppress

The third point of appeal involves a motion to suppress statements Bracke made to a child protective service (CPS) investigator during an interview, which occurred shortly after he told police he wanted an attorney.

Haden wrote that Virginia law “provides that motions to suppress statements obtained in violation of a defendant’s fourth, fifth and sixth Amendments shall be made prior to trial . . . The court may, however, for good cause shown and in the interests of justice, permit the motions or objections to be raised at a later time.”

At the trial, Bracke’s attorney moved to suppress the statements made to the CPS investigator. His attorney also “acknowledged he did not file a motion to suppress at least seven days prior to trial,” Haden noted.

Hurd responded that Bracke’s attorney was aware of the statements for at least a month before the trial.

Hurd also argues that Bracke agreed to talk to the CPS worker. “Thus, the statement complained about by the defendant was actually obtained at his specific request,” wrote Hurd.
Bracke, who pleaded guilty to arson for setting fire to the house he was living in at Wake, remains in jail.

He also is charged with sex crimes against another boy.
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Related Links:

Bracke appeals convictions; other charges pending
Bracke sentenced to 39 years in prison
Bracke pleads guilty to arson.
Bracke guilty of arson could get life
Bracke’s testemony fails to sway jury
Art Bracke convicted
Jury hears testimony in Bracke case
Barcke’s lawyer seeks separate trials on child molestation

posted 05.27.2009

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